Likhi Group Gram Panchayat and Others vs State of Gujarat and Others

Majmudar, J.—This is an appeal under Clause 15 of the Letters Patent against the judgment and order passed by the learned single Judge

dismissing the Special Civil Application No. 2965 of 1992.

The facts leading to the aforesaid Letters Patent Appeal are as under :

Original Special Civil Application was filed by Likhi Group Gram Panchayat through its Sarpanch as well as by one Shri Prithuvisinh Gulabsinh as

power of attorney holder of (i) Shri Jagatsinh Gulabsinh, (ii) Shri Rajslnh Nathusinh and (iii) Shri Daulatsinh Pravatsinh. It was the case of the

original petitioners in SCA No. 2965 of 1992 that petitioner No. 1 and other members of the Gram Panchayat were duly elected under the

provisions of Gujarat Panchayat Act, 1961 (hereinafter referred to as the said Act) and were entitled. They continue to hold the post on which they

were elected for a period of 5 years from the date of their election under the provision of Section 17 of the said Act.

So far as the petitioner No. 2 is concerned, he represents the residents of village which is included in Likhi Group Gram Panchayat. The local area

of Likhi Group Gram Panchayat consisted of (1) Likhi, (2) Chhapara, (3) Surpur, (4) Dolapur, (5) Bhandardi and (6) Khandhol. Because of

construction of Guhai Dam, the whole gamtal of villages Likhi and Bhandardi were likely to be submerged. Therefore, the District Development

Officer, on the basis of report off Taluka Development Officer proposed to the Development Commissioner to divide local area of (1) Bhandardi

and (2) Khandhol and to form three different Gram Panchayats as suggested therein. Certain residents of villages Likhi and Bhandardi made a

representation to the Development Commissioner stating that till the rehabilitation of the residents of the villages was not over the formation of new

Gram Panchayats should be postponed. Though, the Taluka Panchayat as well as the District Panchayat recommended for division of local area of

Bhandardi and Khandhol as well as formation of (1) Likhi Group Gram Panchayat (2) Bhandardi Gram Panchayat and (3) Khandhol Gram

Panchayat the Likhi Group Gram Panchayat passed a Resolution opposing the move to form new gram panchayats. Initially the Development

Commissioner by his letter dated 3-4-1991 addressed to the DDO, Sabarkantha District, Himatnagar held that since the prescribed ceiling

regarding land revenue was not satisfied the proposal for bifurcation of Likhi Group Gram Panchayat was rejected. Said letter of the Development

Commissioner addressed to the District Development Officer is at Annexure A to the SCA.

After lapse of some time, the Development Commissioner issued Notification u/s 9(2) of the said Act. Aforesaid Notification is at Annexure C to

the SCA.

Relevant portion of the aforesaid Notification reads under :

No. KPV/16/DVN/P.1. In exercise of the powers of the State Government u/s 9(2) of the Gujarat Panchayat Act, 1961 delegated to him under

Government Notification, Agricultural and Rural Development Department No. PRN-23-63-G, dated 13th June, 1963 read with Government

Notification, Rural Development Department No. 9. KP-53-PRN-41-64-J, dated the 5th May, 1964, the Development Commissioner, Gujarat

State, after consultation with the Gram Panchayat mentioned in column 3 of the Schedule attached herewith Taluka Panchayat Himatnagar and the

District Panchayat Sabarkantha hereby declares that the local areas shown in column 6 shall be divided from grams shown in column 3 of the

Schedule attached herewith and after division of this area the new grams formed shall be known as Grams named in column 7 having local area as

shown in column 8 of the said Schedule.

This Notification will come in effect from the date of its publication in Government Gazette.

As per the Schedule issued along with the said Notification, the local areas of (1) Bhandardi and Khandhol are divided and three news gram

panchayats viz. 1. Likhi Group Gram Panchayat 2. Bhadardi Gram Panchayat 3. Khandhol Gram Panchayat are formed.

As a consequence of the aforesaid Notification, further order was passed at Annexure D to the SCA dated 13-3-1992 by which a Talati-cum-

Mantri was appointed as Administrator to take charge of Likhi Group Gram Panchayat, Bhadardi Gram Panchayat and Khandhol Gram

Panchayat to function and discharge the duties under the said Act till reformation of the Panchayat mentioned in column No. 7 of the Schedule

under the said Act. The appellants herein who are the original petitioners challenged the said Notification as well as the order appointing the

administrator by way of filing SCA No. 2965 of 1992. The leaned single Judge after considering the affidavit in reply filed by the DDO as well as

after considering the arguments of both the sides dismissed the said SCA by his judgment dated 28-7-92. Being aggrieved by the said judgment of

the learned single Judge, the appellants/petitioners have filed the present LPA.

Mrs. Mehta learned advocate for the appellants has challenged the decision of the State Government in dividing the aforesaid Likhi Group Gram

Panchayat as well as appointing the administrator. Firstly it was contended by Mrs. Mehta that in the instant case, there is alteration in limits of

Likhi Group Gram Panchayat by inclusion of certain area therein and by exclusion of certain area therefrom and therefore, in view of the provisions

of Section 298, administrator would not have been appointed. In our view there is no merit in the contention.

Relevant part of Section 298 reads as under:

Consequences of alteration of limits of gram or nagar. (1) When by a notification under Sub-section (2) of Section 9 the limits of any gram or

nagar are altered so as to-

(a) include any area therein

(b) exclude any area therefrom the State Government may, notwithstanding anything contained in this Act or any other law for the time being in

force, by order published in the Official Gazette, provide for all or any of the. following matters namely :--

(i) in a case falling under Clause (a) the interim increase in the number of members of the gram Panchayat or, as the case may be nagar Panchayat

by appointment of additional members by the State Government;

(ii) in case falling under Clause (b) the removal of the members of the gram Panchayat or, as the case may be, nagar Panchayat, who in the opinion

of the State Government represent the area excluded from the gram or, nagar as the case may be, nagar.....

Relying upon the aforesaid provisions it is argued that when as per Clause (b) of the said section certain area is excluded from the village Likhi

Group Gram Panchayat, there is no question of appointment of an Administrator and therefore, the order of appointment of Administrator is bad in

law and contrary to the provisions of Section 298 of the said Act. It is submitted that appointment of Administrator by exercising the powers u/s

310 of the said Act is bad in law as said provision is not applicable at all. In this connection a reference is required to be made to Section 310 of

the said Act, which reads as under :

Effect of conversion of gram into nagar : division of gram etc. (1) Where by virtue of a notification issued under Subsection (2) of Section 9,

any gram ceases to be a gram or any nagar ceases to be a nagar, and

(i) the local area comprised in nagar is declared to be gram or split up into two or more grams or into a nagar and a gram with effect from the date

on which the local area is so declared or split up (hereinafter referred to as ""the said date"") the following consequences shall ensue, that is to say-

(a) the Panchayat constituted in respect of such local area shall stand dissolved and all the members of the Panchayat shall vacate the office;

(b) until for the nagar or as the case may be the respective new gram, a nagar Panchayat or as the case may be a gram Panchayat is constituted,

the State Government shall appoint an administrator or administrators to exercise the powers and perform the functions of the respective

Panchayat of the nagar or, as the case may be, new gram;

(c) the members elected by the Panchayat dissolved under Clause (a) (hereinafter referred as ""the dissolved Panchayat"") to a Nyaya Panchayat

functioning in the local area shall cease to be members of the Nyaya Panchayat and until the respective Panchayat is constituted as aforesaid, the

State Government shall-

(i) in the case of a new gram, appoint from amongst persons qualified u/s 214 a person to be member of the Nyaya Panchayat of the group in

which such gram has been included; and

(ii) in the case of the nagar, appoint from amongst persons qualified u/s 214 members of the Nagar Nyaya Panchayat of the Nagar and a standing

member of the conciliation panch of the nagar.

(d) the Gram Nyaya Panchayat affected by the dissolution of a Panchayat u/s 9 shall continue to function in the area of the group of grains which

continue within its jurisdiction after the exclusion of any area therefrom u/s 9 unless the number of grams included in the group is rendered less than

three;

(e) the unexpended balance of the gram fund or, as the case may be nagar fund and all properties including arrears of rates, taxes and fees

belonging to the dissolved Panchayat shall, subject to all charges and liabilities affecting the same, vest in such proportion and in such manner as the

State Government may direct in the respective Panchayat of the nagar or new gram.

Provided that until respective Panchayat for the nagar or new gram is constituted and it holds its first meeting under Sub-section (1) of Section 44,

the unexpended balance of the fund and other properties vesting in the Panchayat shall be held by the administrator of the nagar or as the case may

be, new gram and shall be utilised by him for the benefit of the inhabitants of the nagar or one gram in such manner as he may think fit.

(f) any appointment, notification, notice, tax rent, cess, order, scheme, licence, permission rule, by law or form, made, issued imposed or granted in

respect of the area within the jurisdiction of the dissolved Panchayat and in force on the said date shall continue in force on the said date shall

continue in force and be deemed to have been made, issued imposed or granted in respect of the nagar or new gram formed out of the said area

until it is superseded or modified by any appointment, notification, notice, tax fee, cess, order scheme, licence permission, rule bye law or form

made issued imposed or granted under the law applicable thereto;

(g) all budget estimates assessment, assessment list, valuations or measurements made or authenticated by the dissolved Panchayat immediately

before the said date shall in so far as they relate to the nagar or, as the case may be, new gram, be deemed to have been made or authenticated in

respect of the nagar or new gram;

(h) all debts and obligations incurred and all contracts made by or on behalf of the dissolved Panchayat immediately before the said date and

subsisting on the said date shall in so far as they relate to the nagar or any new gram formed in the area within the jurisdiction of the dissolved

Panchayat be the debts and obligations incurred by and the contracts made by the Panchayat of the nagar or, as the case may be new gram;

(i) all officers and servants in the employ of the dissolved Panchayat Immediately before the said date shall be allocated to the Panchayat of the

nagar or as the case may be, new be, new gram or new grams by the State Government in such manner as it may direct and until other provision is

made in accordance with this Act, they shall receive salaries and allowances and be subject to the conditions of service to which they were entitled

or subject on the said date;

(j) all proceedings (including appeals) pending at the said date before the dissolved panchayat shall be deemed to be transferred to and continued

by the Panchayat of the nagar or one gram before which they would have been instituted had the nagar or one gram been formed when the

proceedings were instituted.

Provided that until the Panchayat for the nagar or one gram is constituted the administrator appointed for the nagar or as the case may be, new

gram may deal with such proceedings and dispose them of;

(k) all prosecutions instituted by or on behalf of and all suits or other legal proceedings instituted by or against the dissolved Panchayat or any

officer thereof and pending at the said date shall be continued by or against the Panchayat of the nagar or new gram by, on behalf of or against

which they would have been instituted had the nagar or one gram been formed when the prosecutions, suits or legal proceedings were instituted

and until such Panchayat is constituted, shall be continued by or against the administrator appointed for the nagar, or as the case may be, new

gram.

(2) Within one year of the said date, the Panchayat for the respective nagar or as the case may be, new gram shall be constituted in accordance

with the provisions of this Act.

A bare look to the Notification at Annexure-C makes it clear that the local area shown in column 6 of the schedule attached to the Notification

is divided from the area shown in column 4 of the Schedule and after the division, the new panchayats named in column No. 7 having the local area

as shown in column No. 8 of the said schedule are formed. Accordingly as per the said Notification Likhi Group Gram Panchayat has lost its

originality completely and in fact three new gram panchayats have come into existence viz. Likhi Group Gram Panchayat, Bhadardi Gram

Panchayat and Khandhol Gram Panchayat and even the area is also mentioned which comprises of new, gram Panchayats. Therefore, in our

opinion there is complete splitting of the areas comprising the original Likhi Group Gram Panchayat and three different gram panchayats have come

into existence. The effect of such division has been provided u/s 310 of the said Act and as per the said provision, Panchayat constituted in respect

of such local area stand dissolved and all the members of the Panchayat vacate office and therefore, in the instant case when the original Likhi

Group Gram Panchayat has already been split into three new gram panchayats, the natural consequential effect of the same would be to appoint an

Administrator as envisaged by Section 310 of the Act. The submission of the learned advocate for the appellant with reference to Section 298 of

the said Act has absolutely no force at all. So far as Section 298 of the said Act is concerned, it applies when some area of a particular gram

Panchayat or nagar panchayat as the case may be is altered either by exclusion or inclusion from the said gram Panchayat or nagar Panchayat and

in that case the provisions of Section 298 of the said Act are required to be followed and in such a case there would not be any question of

appointment of an Administrator. Said provision will apply when area of an existing gram panchayat is altered and is included in another existing

gram panchayat because there will be inclusion and exclusion from the area of gram panchayats. In such a situation the natural consequences

provided u/s 298 will follow. However, this is not the case here. The instant case is not covered by Section 298 of the said Act as pointed above.

Here the original Likhi Group Gram Panchayat is split and 3 separate new gram panchayats have come into existence with the area prescribed in

the said Notification and therefore, as per Section 310 of the said Act appointment of an Administrator has been made. This is absolutely in

consonance with the provisions of the said Act and argument of the learned advocate for the appellant has no merit. The same is required to be

rejected.

It was further submitted by Mrs. Mehta for the appellants that the original Notification suffers from the vice of mala fide because once the

Development Commissioner had initially not approved the proposal subsequently, without any basis or valid reasons within a short time, he could

not have approved the division and formation of new panchayats. So far as the allegation about mala fide is concerned, averments had been made

in para 8 of the original SCA. Said para 8 reads as under :

The petitioners say that the action of dividing the Likhi Group Group Panchayat into 3 Panchayat is also mala fide in law, inasmuch as the

Sarpanch and the members of the Gram Panchayat who are looking after the interest of the villagers, who were completely uprooted because of

the Guhi dam and because they were helped by the Sarpanch and members of Likhi Group Group Gram Panchayat in getting their legitimate right

from the Government the impugned action is taken with a view to remove them by illegal methods and by circumventing the provisions of law. The

petitioners therefore, say that the Notification Annexure-C to the petition and subsequent order Annexure-D to the petition is illegal, ultra vires and

bad in law.

Reading the aforesaid averments made in para 8 of the petition it can hardly be said that there is any basis for such assertion or allegation about

mala fide action. There is hardly any pleading about mala fides in the said para. The Development Commissioner has also filed affidavit in reply

which is at page 32 of the compilation wherein he has pointed out that the Notification in question was issued for safeguarding the interest of the

people and the said decision was taken in good faith and in public interest. It has been pointed out in the affidavit in reply that in view of distance

problem which has occurred due to the water of the dam, the bifurcation became imminent and he has also annexed a sketch along with his reply

to substantiate his plea of bona fide exercise of power. As stated above, nothing has been shown as to how the aforesaid decision is in any way

mala fide or against the interest of public.

It was next argued by Mrs. Mehta that once the Development Commissioner had turned down the proposal for such division/ bifurcation, he

was required to follow the procedure of fresh consultation with Gram Panchayat, Taluka Panchayat as well as with the District Panchayat and as

no such consultation had taken place the Notification should be quashed. The Resolution passed by the Taluka Panchayat and District Panchayat

regarding the proposal for bifurcation is annexed at page 36 of the SCA.

This Resolution would show that there was no mala fide on the part of the Development Commissioner in issuing the Notification in question. It

may be stated that consultation required had already taken place earlier. Therefore, after considering all the materials on record, if ultimately the

Development Commissioner has issued a Notification it cannot be said that within such a short period further consultation was required to be

made. So far as the question of consultation is concerned as laid down in the decision reported in Kalubhai Kesrisingh Mahida Vs. The State of

Gujarat and Others, , that such procedure is directory and not mandatory. In this decision it has been further observed as under :--

.....a duty to consult the Panchayat before passing an order under the section, it does not follow that every departure from that duty will taint the

whole proceeding with a fatal blemish and render it void and ineffective. We find nothing in Section 9 of the Act which would lead us to the

conclusion that if the Government omits to consult the Panchayat concerned while taking action under Sub-section (2) of Section 9, the right of the

Panchayat or any person would be adversely affected. There is also nothing in the Act to show that even after consultation the sense Indicated by

the Panchayat concerned would be binding to the Government.

It has also been observed in the said judgment that the Sub-section (2) of Section 9 is directory and not mandatory. Above referred to reported

decision was also subsequently followed by the Division Bench of this Court in the case reported in Naroda Nagar Panchayat Vs. State of Gujarat

and Others, , wherein it has been observed that the word ''consultation'' cannot be equated with ""consent"" or ""concurrence."" In the instant case

aforesaid procedure of consultation had already taken place and therefore, it cannot be said that the Notification issued by the Development

Commissioner was in any way illegal, arbitrary or mala fide.

The learned single Judge after considering the aforesaid aspects has ultimately by a detailed and reasoned judgment rejected the said SCA and

we respectively agree with the conclusion of the learned single Judge.

No other arguments were advanced on behalf the appellants in support of the appeal. Since we find no force in any of the submissions of the

appellants, we dismiss this appeal with no order as to costs.

Interim relief granted earlier shall stand vacated forthwith.